capacity and form of marriage in the conflict of …

CAPACITY AND FORM OF MARRIAGE INTHE CONFLICT OF LAWS

IBARS IMPOSED BY.PERSONAL LAW

The development of private international law seems to havethis in common with the evolution of public international law,that it proceeds in a bewildering sort of zig-zag fashion: asettled proposition appears to be laid down and to obtain uni-versal acceptance, upon which the world has no occasion for itfor a decade or two, completely forgets it, and after a spell ofother activities treats the settled rule as though it had never been,and ultimately works round to it again de novo. Long spellsof maritime peace, such as that between 1865 and 19o4, madethe world forget the laws of war at sea. In 1861 Brook v.Brook' emphatically enunciates the paramountcy of the personallaw in respect of capacity2 for marriage, and in 19o7 the personallaw is set on one side in Ogden v. Ogden.3

The infrequency of these cases involving persons and places ofdifferent national complexion has hitherto made it inevitable thatthere should be no strong catena of decisions-no abiding judicialconsciousness of the proper rule. All the more important is itthat the true principle should be made so clear by science thatcourts cannot e misled.

But it is not so easy to say what the principle is.It-is probable that this is just one of those cases in which any

principle is better than uncertainty. Brook v. Brook, decidedlong ago by the very highest English tribunal (the House ofLords), and by four of the greatest names in British juris-prudence, seemed to have given a clear and certain rule. Of

1 (1861) 9 H. L. Cas. 193."Capacity" in these discussions means simply "legal ability." Mr.

Foote's attempt to distinguish incapacity from the results of an isolatedprohibition (such as prevents marriage within the degrees of affinity, or,we suppose, of impotent persons) only introduces an unnecessary diffi-culty, though supported by dicta in Ogden v. Ogden [19o8] I P. 46. If itis not legal for A to enter into a particular union, A has not "capacity"to make it. Wilson V. Cook (913) 40 Clunet, 986.

" [x9o8] 1 P. 46.

CAPACITY AND FORM OF MARRIAGE

the peers who took part in the decision, Campbell, Cranworth,

St. Leonards, were or had been Lord High Chancellor. Wensley-

dale (Baron Parke) was the most consummate common lawyer

of his day. Not the decision alone but the language of the

parties to that opinion indicated clearly that capacity to contract

marriage is governed by the personal law of each party.Marriage is a sort of co-emptio; and caveat emptor. Each

party must beware lest the other may chance to be incapable.

The fact of foreign connections will generally be patent. In

any case, a deceived party is in no worse case than a party to

a bigamous marriage. Some risks must be taken by anyone

who embarks on matrimony. And one who marries a foreigneris put upon inquiry.

But "hard cases make bad law": and hard cases began to arise.

Persons of foreign domicile came to England and induced Eng-

lish persons to go through the form of marriage with them in

England. The anxiety of the judges ut res magis valeret led them

to break holes in the clear doctrine of Brook v. Brook.Let it be observed that the principle that capacity to marry is

measured by the personal law, and not by the law of the place of

celebration, is quite independent of any general theory of capacity

to enter into contracts. Marriage is an affair, not of contract,

but of status. It is not the promise to marry, but the ceremony

of marriage, of which we are treating. Capacity to make

ordinary business contracts and the casual agreements of every-

day life may well be regulated by the law of the place of contract,

or the place of its contemplated performance. The acceptance

of a totally new status, affecting the entire future of the party,is quite a different matter. Let it be noted, too, that for Ameri-

can and English lawyers, the "personal" law is the law with

which an individual is presumed to have most to do, and to be

most in touch with-the law of his or her domicile, i. e., the last

place where he or she was settled with no intention of ever

permanently removing therefrom. On the continent of Europe

(though not generally in South America), the criterion of the

political nationality has, through political causes, for some half-

century supplanted it, except in Denmark and Switzerland. And

it will further be borne in mind that domicile in England means

something very much more permanent than the continental

domicile. It is almost impossible to acquire a new domicile in

the English sense, except by very long residence or the closest

connection. On the other hand, a Danish domicile determining

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his age of majority was held, in Copenhagen, to have beenacquired by a Swede who had been three years a steward onDanish steamers. No intention to reside permanently in Den-mark was shown, and this would have been imperative byEnglish practice.

Now, it was admitted in Brook v. Brook that the ceremonialand forms of the marriage must be those of the country whereit is celebrated. Lex loci regit actus.' And therefore one meansof evading Brook v. Brook was ready to hand. One could callan apparent incapacity a mere matter of form. In fact, LordCampbell had suggested this, in Brook v. Brook itself. Heexplained an earlier case, Steele v. Bradwell,5 which he mighthave overruled or (as being an Irish case) disregarded, as onein which there was no real question of incapacity, but one ofform merely. Certain consents, required by the law of thedomicile, but not by the law of the place of celebration, wereheld to be no essential conditions of capacity; and a personwho could not marry without them in his own domicile, Ireland,was held to be bound if he purported to marry without them inScotland."' But on such reasoning one could explain away almostany incapacity as a matter of form, as Westlake observes. Theywere imperative restrictions, just as much as the attainment of aparticular age. Another case, decided rather later than this, wasperfectly in consonance with the doctrine of Brook v. Brook,but was difficult to reconcile with Campbell's explanation ofSteele v. Bradwell. This was the Sussex Peerage Case.7 TheDuke of Sussex had married Lady Augusta Murray at Romewithout the consent of King George III. If consents were mat-ters of form, the law of Rome knew nothing of the BritishRoyal Marriage Act, and the marriage was perfectly good.The Lords decided otherwise, advised by the judges. It is diffi-cult, if not impossible, to reconcile these two cases; and it

"This maxim is not accepted by all countries as excluding the validityof the forms prescribed by the personal law.

(x838) z Milw. Eccl. i. This case was decided by Dr. Radcliffe, theEpiscopal Chancellor of Dublin-if the writer's recollection is correct-and would not of itself be of very great authority.

"Martin v. Foberg (i889) i6 Clunet, 138. Cf. Winans v. Attorney-General ['9o4] A. C. 287, where twenty years' residence was heldinsufficient.

(z844) ixi CL & F. 85. Distinguish Prince de Sayh's Case (1883) 1oClunet, 312.


seems best, with Westlake, to treat the Irish one as overruled,

and to dissent from Lord Campbell's view of it. Consents, if

imperatively required, are matters of capacity and not merely

of form. Still, when they are not imperatively required, but can

be evaded by the observance of further formalities-as by the

acte respectueux in France-they can be plausibly, and perhaps

rightly, represented as mere forms. And so, in Simonsn v.

Mallac,8 the divorce judge, Cresswell, succeeded in upholding the

English marriage of a domiciled French subject who had not

obtained the necessary parental consents-on the ground that by

observing certain forms he might, even in France, have done

without them.9

But the more insidious ground of attack on the broad prin-ciple of Brook v. Brook was the fact that both parties had there

gone abroad to evade their common (English) personal law. That

was not the ground of the decision, which was squarely placed onthe propriety of recognizing the limitations imposed on eachparty by his or her personal law, irrespective of their desire toevade it. The Lords do not stress the special impropriety of two

persons conspiring to avoid the operation of their joint personallaw. And in a very remarkable case of Mette v. Mette,10 Cress-well laid down the same rule of the paramountcy of the personallaw, where only one party was subject to the incapacity. Adomiciled Englishman purported to marry his deceased wife'ssister in Frankfort. Her law (German) did not prohibit themarriage: his did," and Cresswell held it invalid.

' (i86o) 2 Sw. & Tr. 67.

' Olivecrona, Validit6 du mariage des itrangers devant la loi su~doise,

(1883) io Clunet, 351, 352, thinks that in Sweden consents would alwaysbe treated as matters of form.

" (1859) r Sw. & Tr. 416; see also De Wilton v. Montefiore [igoo] 2

Ch. 481.'Foote, Priv. Int. Jurispr. (4th ed.) p. ioo, suggests that the personal

law of the intended husband, being that of the "intended matrimonial

domicile," may be decisive. But this is surely preposterous. Until the

marriage is celebrated the lady is properly still under the protection and

scope of her own personal law. It lies with it to say whether her inten-

tion can be lawfully carried out; that is, if we adopt the doctrine of the

personal law being at all decisive. In Mette v. Mette, supra, Cresswell

says that there can be no contract unless each is severally competent

to contract. And in fact, Foote himself, p. 97, recognizes that to apply

to the lady the law of the other party's domicile is "to beg the question

of their marriage."

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In this state of the decisions, it seems impossible to say thatcommon elopement to evade a common incapacity was the trueground of Brook v. Brook. It was the intention of the House ofLords to lay down a general principle of the paramountcy ofa personal law. The question arose, but unfortunately not forten years, in Sottomayor v. De Barros.12 This case had a com-plicated history. It was first tried on the footing that bothparties were domiciled Portuguese; and subsequently, in somemanner not easy to understand or to explain, on the footing thatone was, by domicile, Portuguese and the other English. Themost authoritative judgment (that which was delivered by threeLord Justices on the appeal in the first case) completely con-firmed Brook v. Brook in the fullest sense: indeed Lord JusticeCotton enunciated the authority of the personal law as applyingto all contracts, and his opinion remains the principal authorityfor that proposition. Sir R. Phillimore, in the court below, hadnot applied the Portuguese personal law, distinguishing Brook v.Brook partly on the ground that the latter was a case of Englishpeople evading English law abroad, whereas this was only acase of foreigners evading foreign law in England; and partlyon the authority of Simonin v. Mallac. The Court of Appealreversed this, and expressly put the case on the broadest prin-ciple, apart from national considerations, and as expressly,adopted the view that Simonin v. Mallac turned on the purelyformal character of the consents there required. But the Queen'sProctor intervened: the case was retried before the divorcejudge Hannen on the footing that the asserted husband had beendomiciled in England. Hannen seized at that circumstance toexplain away Brook v. Brook on a ground which had not beenargued before the Court of Appeal (and could not well havebeen), viz., that it applied only to cases of an elopement to evadethe stringency of a common personal law.n Such were certainlythe facts in Brook v. Brook; but as we have seen, the case didnot turn on this peculiarity. And Hannen's view was dia-metrically opposed to (i) the dicta of the Court of Appeal inthe earlier case of Sottomayor v. De Barros; (2) the speechesof the Lords in Brook v. Brook; (3) Mette v. Mette. That is,it conflicts with Mette v. Mette, if mutatis mutandis, a foreign

(1877) 2 P. D. 81 ; (1878) $3 P. D. 1 ; (1879) 5 P. D. 94.

Cf. Roth v. Roth (1882) 104 Ill. 35; Wilson v. Cook (913) 40Clunet, 986.


prohibition is as much entitled to be recognized as an Englishone, which one is tempted sometimes to believe the courts areslow to realize.

Nevertheless, when the question, having enjoyed a refreshingsleep of thirty years, came up again in Ogden v. Ogden, it wasHannen's views, and not St. Leonard's, Wensleydale's, Cotton's,Cresswell's or Campbell's, that had the most influence with thecourt. Here was a French boy, Ldon Philip, incapable ofmarriage by the observance of any formality, without a certainconsent. He came temporarily to England and married withoutit.14 The Court of Appeal, affirming Justice Deane, held himvalidly married. Apparently they regarded this indispensableconsent as a "formality," and intended to leave the questionopen of the effect of an "absolute prohibition" imposed by thepersonal law. Confusion is thus worse confounded. The con-jecture may be hazarded that in the future the doctrine of Brook

"'This, it will be seen, was precisely parallel to the case of PrinceJerome Bonaparte, who married Miss Patterson in Maryland at theage of nineteen, without the consents required by Napoleon Is thenrecent code. The validity of this marriage, Wharton says, has never beencontested in the Tnited States. Cf. his article, Du mariage aux E tats-Unis (i87g) 6 jouR. DE DRorr iNT. riRivf, 228, 235. It will be rememberedthat Napoleon I's own marriage to Josephine was annulled for reasons ofform. Wharton's opinion that the Pope, in refusing-to annul Jerome'smarriage, adhered to the view that the personal law does not extendbeyond the limits of the lawgiver's territory, appears to rest on a con-fusion. In the eyes of the Vatican, the edicts of the French lawgiverwere not in issue. The only question for His Holiness was, had thedecrees of the Council of Trent been promulgated at Baltimore? and itwas found that they had not.

Military consents are needed in various cases. I doubt much whetherthey would be treated as imperative in England; not because they aremere formalities, but because they are on a par with monastic disabilities.But German disabilities of this kind have been enforced in Belgium.Bausch v. State (1914) 41 Clunet, 99W.

Governmental consents are (or were) required in Bavaria (except thePalatinate) and the Tyrol, and in the former country entailed, until 1892,nullity if pretermitted. In 1872, this was relaxed in the case of Bavarianssettled out of Europe; and in 1892, the penalty of nullity was retroac-tively relaxed, which produced some very pretty metaphysical problemsas to bigamy. These were rendered the more easy of solution in thatthe invalid marriage could always be validated by an ex post factocertificate of consent Keidel, Le mariage des Bavarois i l'6tranger(1897) 24 Clunet, 986. In Greece the consent of the bishop of the dioceseis requisite. (903) 30 Clunet, 91o.

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v. Brook will be reverted to, whether the parties have the sameor different domiciles; and that possibly the anomalous excep-tion of disregarding foreign incapacities to marry without cer-tain consents will be maintained, and represented as justified bythe formal character of such legislative provisions when enactedby another than an English legislature.

The personal law, even if admitted to be decisive, may be self-limiting. It has been held in Austria, that the prohibition ofmarriage between a Catholic and a Jew is directed merely againstthe scandal of celebration within the realm. Such a marriageelsewhere contracted by parties whose personal law is Austrianwill, it was said, be regarded as valid, if valid where celebrated., 5

But the same court, a year previously, had held invalid the mar-riage in Saxony of a Catholic Austrian with a divorced person (aSaxon)"8 ; and in i9o4 had done the same in regard to this verycase of Austrian Catholic and Jew marrying abroadY.1 Morethan that, the same court had in i9o4 also laid down that sucha mixed marriage was intolerable to Austrian law, wherever orby whatsoever country folk contracted !1 The Irish case ofSwzift v. Attorney-General must, of course, be clearly distin-guished from the first-mentioned of these Austrian cases: inSwift's case, the party could have married in Ireland itself, bythe use of a proper form-the employment of a Protestantminister. The statute, i9 Geo. II, which prohibits Protestantsfrom being married by a Catholic priest, does not impose on themany incapacity to marry Catholics. It merely regulates forms, anda domiciled Irish Catholic did not need to observe them abroad.It is not, therefore, the case of a self-limiting personal statute,as the Austrian law (as interpreted in the case referred to)might be. It may be noted that the present tendency in Austriaappears to be to apply all these personal incapacities to Austrianswho marry abroad, if (and only if) the marriage is intended

(i9o8) 35 Clunet, 554, citing (I9O8) Zeitschr. ffr int. Privatrecht, 571,and (I9O) Juristische BLitter, 82; (io9) 36 Clunet, 88, citing (igo5)Zentralblatt, 717; (i9) 38 Clunet, 296, citing (19o7) Zentralblatt, 142.

"6 (igo8) 35 Clunet, 1217, citing (igo6) Juristische Blftter, 5oi; see also,(I909) 36 Clunet, 536, ii6o, 1164, 1167, citing (9o6) Zentralblatt furjuristische Praxis, io2o, 654, 13r, 128, (i9o5) 726.

' (09o6) 33 Clunet, ii9O.'On the other hand it was held in Germany that it was equally intol-

erable to German law to recognize such a religious incapacity. (i9o6)33 Chmet, 119 (Austrian married in Germany). (IO9) 36 Clunet, 785.


(or perhaps calculated) at the time of its celebration to have

legal results in Austrial--a somewhat forced interpretation of

section four of the Civil Code which seems to have been enactedaio intuitu, and not to deal with these questions of public policy.20

And the extreme doctrine, that a Catholic-Jew marriage is

abhorrent, appears to have been abandoned in 19o4, when an

American non-Christian and an American Catholic, resident inAustria, were held to have been validly married in the UnitedKingdom, although they visited it for that express purpose.

II

FORM AND ESSENCE

Great difficulty has arisen from the fact that the notions ofall countries are not all alike as to what is matter of capacity; ofthe essential nature of the contract of marriage; and what ismatter of form.

In France, the Tridentine idea has long been current that

"clandestinity" is something more than matter of form, and

"(914) 41 Clunet, 244, r325; (19I1) 37 Clunet, 637; (I91) 38 Clunet,296. This doctrine seems to date from a decision of I9o5. (igog) 36Clunet, 8M8. It evidently gives rise to great difficulties of application.It approximates in practice to applying the law of the domicile (in theAnglo-American sense). In fact, the decision of the Vienna court ini9o7, (I911) 38 Clunet, 296, declared such mixed marriages betweenAustrians abroad to be valid "if at the time of the celebration, theyentertained no intention of returning" to Austria: precisely the definitionof domicile. Nevertheless, in Igog, a tolerably recent decision (1911) 38Clunet, 29, citing (igiO) Pravnik, No. xix, adheres to the doctrine thatthe prohibition is not local, and that the provisiong of sec. 4 of the codecannot be relied upon to confer capacity abroad, since marriage is alife-long and world-wide institution "calculated" and "intended" to con-fer rights in all countries. To the writer this appears a much morejuridical view. Other decisions upholding the doctrine of specific "inten-tion" are in (19I1) 38 Clunet, 967, 1297. It is essentially the samejudicial looseness as makes the British courts adopt, as the proper lawof a contract, the law which the parties "intended" to choose, in spiteof the fact that, as Westlake says, it is-the very lawfulness of that inten-tion which may be in dispute. The uncertainties and difficulties of sucha criterion are manifest. As to the doctrine of "intention" in prize law,the reader may consult the writer's Britain and Sea Law, passim.'That sec. 4 is really not in point, is proved by the fact that, in applying

it, the usual temperamenta are not applied, i. e., a minor's "intention" isgiven full effect to, although it certainly would not be regarded in a caseof ordinary contract. (i911) 38 Clunet, 969; (1914) 41 Cluet, 1325.

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that its absence, judged by French standards, constitutes, so tospeak, part of the essence of marriage. But unless we regardthe word "forms" as equivalent to "otiose forms," such anattitude is really one of revolt against the maxim locus regitactus. Forms are directed to securing some maatter of substance:to say that the forms which one nation uses are not sufficient toguard against clandestinity, is to elevate one's own forms to theplane of essentials. The same may be said of the Servian view,according to which, as ably expounded by Prof. P6ritch, mar-riage is a sacrament, and the ecclesiastical form of the OrthodoxChurch is an essential. That is, in effect, to relegate non-Orthodox marriages to a category having nothing in commonwith marriage, and to regard them precisely in the way in whichEnglish law regards Oriental marriage, namely, as a differentjuridical institution. These questions are not so much questionsof capacity, as questions of the essentials of marriage. But theyare so closely allied to matters of capacity that it is worth sayinga Word about them. The objection to "clandestinity" does not,in France, annul every marriage entered into by French peopleabroad without the necessary ratification in France and consentsby French parents. But it is left to the judge to say whetherthey were dispensed with for the sake of clandestinity-an unsat-isfactory position.21 The marriage of one Sarah Bernhardt witha Mr. Damele, a Greek, in England, without French forms ofratification, was upheld in i888;22 but very many marriages ofminors have been annulled in France and in Belgium, and somein Italy, for want of them. It seems to be otherwise in Holland.New York, in 1912, annulled a marriage of domiciled NewYorkers in New Jersey, for want of parental consent, one partybeing eighteen 4 ; but it is probable that in this case the marriagewould equally have been invalid in New Jersey itself.

Still more difficulty attends the case, arising in Servia, Bul-garia, Greece, and Russia, where only religious marriages are

' In a recent Belgian case, Du Bois de Bianco v. Veuve du Val deBeaulieu (913) 40 Clunet, i322, a marriage was held not clandestinealthough one of the motives Was to give it less clat in the eyes of arelation.

'Ballande v. Bernhardt (i889) 16 Clunet, 641. A contract was repudi-ated, as made without marital concurrence.

'Reitz v. Dieten (i9o8) 35 Chmet, 1273.'Cunningham v. Cunningham (1912) 2o6 N. Y. 341; Wilson v. Cook

(1913) 40 Clunet, 986.


recognized. 25 Is the religious ceremony a mere form? or isit part of the essence of the institution? According to the lawof the countries in question, it is part of the essence, but that isnot the point. What is it, from the standpoint of other nations?It is almost certain that the religious ceremony would beregarded as pure form in England or Scotland, whatever mightbe the case in Ireland and Quebec. Yet, in France,26 it waslong regarded as a matter of capacity, to be regulated by thepersonal law. A Russian was held unable to marry in France,therefore, without a religious ceremony, according to decisionswhich have been severely criticised by M. Perroud and arecontrary to a Belgian case of 1905. In 1913, the French courtdefinitely discarded them .2

Conversely, a purely religious marriage will be recognized inFrance, if it has taken place in accordance with the laws of theplace of celebration, even though a religious marriage producesno legal consequences in France; at any rate, if subjects of thatplace are alone concerned.29

At first sight, the problem which we saw arose in Swift v.Attorney-General seems to be the same problem as this. But itis not really so; because in Swift v. Attorney-General nothingturned on the asserted sacramental character of the marriage.It was as pure a question of form as could well be imagined.These Servian and Russian cases, in which a non-sacramentalmarriage is not the same kind of marriage at all, involve totallydifferent principles. Take a case like Stathatos v. Stathatos,0

'On the whole subject of sacramental marriages, see Piritch, De lacomp~tente en Serbie (igoo) 27 Clunet, sec. i, p. 742.

'Edinson v. Edinson (i9o8) 35 Clunet, 1148.(1905) 32 Clunet, io85, affirming Perlmann v. Bechhafer.

S(194) 41 Clunet, 2o2, affirming Roitstein v. Roitstein. This case,however, proceeded less on the footing that religious ceremonies werematters of form than on the sweeping assumption that it was repugnantto French law to notice religious institutions. The logical consequenceof this position would be to refuse recognition to all religious marriageswherever celebrated. See Durrighello; see also Mosliczker v. Mosliczker(i9o6) 33 Clunet, 1146. Austrian Jew married in France without religiousceremony. Marriage was held void.

* (i916) 43 Clunet, i6o6, affirming Durrghello.o [Ig13] P. 46; cf. Gachon v. Gachon (1894) 21 Clunet, 138. In this

case the fact that consent could have been dispensed with by a formalprocedure was treated, not as reducing the consent to matter of form,but as evidencing the absence of "clandestinity." Unlike Philip inOgden v. Ogden, supra, Gachon was thirty years of age.

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where a Greek married Caroline Henry in England without thepresence of an Orthodox priest; where the parties actually livedtogether for some time; and where the Greek courts31 renderedeventually a nullity decree, because the sacramental union hadnot been created, which alone they considered a domiciledOrthodox Greek competent to enter into. The marriage wasclearly good in England, and it was only by stretching a pointand assuming jurisdiction where there was no domicile that theEnglish court granted a dissolution decree.32

III

BARS UNKNOWN TO THE PERSONAL LAW

The question does not seem ever to have been much discussedin England of whether the personal law can override the locallaw, so as to make a marriage good, as well as to make it bad.Can a person who is of age in her own country marry whenshe is temporarily abroad in a country where the age of con-sent is above her own? Will the English court recognize thecapacity of a foreign domiciled uncle and niece to. marry inEngland, if such a union is permitted by their personal law?Will it recognize as valid the marriage of domiciled English

'The English courts will probably not entertain an action of nullityunless the defendant is domiciled, or at least resident, in England. InLinke v. Van Aerde (1893) 1o Times L. R. 426, the fact of Englandbeing the locus celebrationis was held sufficient But if the question ofmarriage or no marriage arises indirectly, they will not hesitate to decideit on proper evidence of the law of the foreign country, or countries, whichmay be concerned. Spain equally abstains from deciding directly on themarriage even of Spaniards in a foreign country and in foreign forms.P. y B. Josi v. G. Isabelle (1912) 39 Clunet, 284. But Brazil is so accom-modating as to give divorces on German grounds to German subjects inBrazil'although its own law recognizes no such thing as divorce, Ulbrichv. Ulbrich (913) 40 Clunet, 1329; and France, with even greatercomplaisance, hands it over to French Jews to divorce Russian Jews inFrance, Rosenbaum v. Kuhn (1912) 39 Clunet, 192.

'For the reasons above given, p. 452 f., I think it a mistake to do this.There is no natural right to divorce, which must viis et modis be sub-served. And it is somewhat grotesque to treat a man as living inadultery because he is living with a person who by the law of hisdomicile (which is what English law recognizes as determining hisstatus) and nationality is his lawful wife. To mix up the laws of twoor more countries in order to ascertain a person's marital position is arisky adventure.


cousins in Portugal, where the local law forbids such marriages?It is possible that different answers will be given to these ques-tions just as different answers were given to the inverse problemsraised in Mette v. Mete and Sottomayor v. De Barros, two con-

sistorial cases, on which Mr. Westlake relied to show that thelocal law must be complied with, which are very inconclusive.-The Hague Private Law Conventions,34 which Mr. A. K. Kuhnhas so well put before English readers in his edition of the lateProfessor Meili's work, allow a country to refuse validity tomarriages celebrated on its soil which outrage its religious pro-visions. But even these Conventions do not entitle a country torefuse validity to marriages which violate the religious prohibi-tions of other places of celebration. Thus, if we regard a mar-riage between uncle and niece as prohibited in England onreligious grounds, which it undoubtedly was at the inception ofthe prohibition, England would, nevertheless, be obliged torecognize such marriages, valid .by the Norwegian personal lawof the parties, if they were celebrated in New York, even thoughNew York law might, on equally religious grounds, contain asimilar prohibition-a sufficiently absurd result. Moreover, itis difficult to assign a positively religious basis to most prohibi-tions: probably the special obligations of monks and nuns werealone in view when the Convention was framed. Thus the word"religious" would have a very narrow interpretation. It seemsaltogether too ambiguous a term to be employed in so importanta context. The Belgian court has declined to regard the pro-hibition to Catholics to marry divorced Catholics as based onreligious grounds.3

It is perhaps not unnatural that one, always ready for adop-tion, should turn with a certain sense of relief to the alternativeof discarding the personal law in all these matters of capacity,and of leaving the decision entirely to the local law, and this is

'Scrimshire v. Scrimshire (752) 2 Hagg. Cons. 395; Middleton V.Janverin (1802) 2 Hagg. Cons. 437. In both cases the local forms had notbeen complied with; nor can Simpson and Wynne who decided them belooked upon as first rate authorities.

" Neither the United States nor the United Kingdom is a party to theseinstruments, the effect of war on which is the subject of argument.Pillet seems to hold, with justice, that such multiple conventions are inprinciple destroyed by the outbreak of war between any of the parties;though the rest may tacitly resume the pact.

'Ritter v. Miko (904) 3 Clunet, I42.

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the view put forward by the late Chief Justice of England in anarticle written in 189786 There is no reason why a foreignershould not make himself acquainted with that law's provisionswhen taking so important and irrevocable a step. There is nolikelihood that anybody will be deceived as to what country heis being married in. The evils of a conflict between the lex locicelebrationis and the lex civitatis are apt to be much exaggerated.They may be avoided by ordinary care; and it may be better tohave one's marriage valid in one's own country alone, than tobe obliged to find oneself unmarried anywhere. Possibly abetter solution might be to allow a marriage to be good which isvalid according to any law which may reasonably be invoked asapplicable-lex loci, lex domicilii, lex civitatis ligeantiae, perhapslex fori. But the world of 1917 A. D. is by no means ripe forsuch a development.3 7 The worst solution of all, however, is thatof enforcing one's own law as a personal law abroad, whilerefusing, or grudgingly according recognition to foreign laws athome. Ogden v. Ogden marks a strong tendency to protectEnglish ladies of mature years from the consequences of theirown imprudence, and to do so at the expense of foreign minors.It is almost to be regretted that the case did not go to the Houseof Lords, which tribunal could scarcely have failed to remarkthe difficulty of distinguishing between an incapacity to marrywithout parental consent and any other substantial incapacity.It is remarkable that the Italian law, which is almost as devotedas Mr. Weiss to the supremacy of the law of the nationalityover the personal status, declines to hold a foreigner entitled tomarry in Italy if he is a minor by Italian law!

And it must always be remembered that no country will enforcea union, whether contracted within or without its limits, andwhether between its domiciled inhabitants or anyone else, whichis repugnant to its criminal law or to its sense of morality. Thus,we cannot expect that a union between niece and uncle wouldbe recognized in England in the case (which OlivecronaO8

assures us has occurred) where the persons were Norwegiansliving in Norway at the time of their marriage, although the mar-riage may have been perfectly valid there. Yet some effect might

(i897) 24 Clunet, 669. This rule is said to be adopted in the UnitedStates, in Argentine, and in Brazil

' Cf. Jitta, Obligations, passim.' Le mariage des itrangers en Suede (1883) io Clmet, 352; (i911)

38 Clunet, 4o2.


be allowed to its operation on property situate in England on

the footing of its being a contractual arrangement with the

morality or criminality of which the English courts had nothing

to do.In Sweden, the repugnance to such a marriage, though it

would be invalid in Sweden, would apparently not extend to

induce the Swedish courts to treat it as invalid under such

circumstances unless the husband acquired Swedish nationality,though it still remains forcible enough to induce Sweden to take

advantage of the liberty accorded by the Hague Private Law

Convention, to refuse such relatives permission to marry in

Sweden.39

In Switzerland, it appears, such marriages are illegal, but if

contracted abroad, will be accorded recognition"0 even when the

parties are Swiss and domiciled in Switzerland. Switzerland

appears only to marry such foreigners as are domiciled (perma-

nently settled) in Switzerland. 41 This is not a bad solution

of the whole difficulty for those countries whith adopt domicile

as the criterion of the personal status. Why should a transient

foreigner wish to marry? Why should not his intended consort

establish a domicile in the country where such a stranger is

settled? There are answers to these questions, but apparently

Switzerland regards them as insufficient.In England a marriage between a widow and the brother of

her deceased husband, celebrated in Italy between domiciled 42

Italians, was naturally held valid.43 Naturally, because such

marriages caused no repugnance to public sentiment-the House

of Commons had repeatedly pronounced in favor of very similar

ones-so that there was nothing to prevent the Italian law from

applying, as the law of place and domicile combined. But in

Guernsey, the Dean annulled the marriage, there celebrated,

of a divorced person though domiciled and divorced in England."

We, therefore, need clearly to distinguish those cases in which

capacity is a mere matter of local regulation, and those in which

'Reuterski6ld, Le mariage, le divorce et la tutelle d'apr&s le droitinternational priv6 suidois (1g91) 38 Clunet, 405.

'A. Martin, Du mariage et du divorce des itrangers en Suisse (1897)24 Clunet, 74o, 747; but cf. 922.

'A. Martin (1897) 24 Clunet, 74o.'It is worth noticing that the lady was of British nationality.'In re Bozzelli [9o2] I Ch. 751."Smith v. Kentfield (I889) 16 Clunet, 13o; (Dec. 6, i888) LONDN TIMES.

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it rests on an energetic sentiment of repulsion. In the formercase, it is possible that the personal law will prevail over localbars (at any rate, when it is also the lex fori). In the latter,it cannot often prevail over the bars established by the lex fori,and whether it prevails over the bars of the lex loci is a verydubious question. Suppose the question to arise in an Englishcourt of a marriage per verba de praesenti of black and whitepersons in an American state where such marriages are pro-hibited, both parties being domiciled in a state where they arepermitted. The lex fori, entertaining no sentiments of repug-nance to such a union, has no reason for disregarding the capacityconferred by the lex domicilii. Will it take account of therepugnance of the lex locif It is probably not repugnant to itsown ideas to do so; to recognize such prohibitory legislation isnot like recognizing religious vows or slavery" or penal law.But will it think it necessary to draw the line between prohibi-tions that are specially dear to the lex loci, and prohibitions thatare not so deeply rooted in its sentiment? Will it allow marriagewith a deceased husband's brother to be valid, and treat mar-riage with a negro as void, where both are prohibited in thelocus and permitted in the domicile? It is impossible for aforeign court to draw any such line. If it recognizes thecapacity conferred by the personal law as overriding the law ofthe locus, it must recognize it for all purposes, saving its ownoverpowering predilections."8 The difficulty of attempting todraw such a line, even for itself, is considerable. Thus, Bus-dugan47 does not think that a Roumanian court would decline torecognize the marriage of a twelve-year-old Austrian in Rou-mania, whilst it would so decline to recognize the marriage dfcousins, or of a deceased wife's sister.

We have seen the Supreme Court of Austria varying, withintwo short years, in its manner of regarding Jew-Christian mar-riages: at one time finding no fault with them, so long as they

'It illustrates the difficulty of the whole subject that Busdugan, infra,thinks that the Roumanian tribunals would have no repugnance to recog-nizing religious bars whilst they would refuse to recognize bars basedon color or race distinctions. He is speaking of marriages solemnizedin Roumania between strangers.

"Saving also the operation of a renvoi by the personal law, for thosewho accept the guidance of this will o' wisp doctrine.

' See an exhaustive and able article, Du mariage des Roumains al'tranger (igoo) 27 Clunet, 749, 757.


are not solemnized in the sacred dominions; at another, regard-

ing them as impossible for an Austrian subject; at another,

declining to recognize them at all, as being fundamentally incon-

sistent with Austrian ideas. This shows how impossible it is for

unfortunate private persons or for the courts of other countries

to draw the delicate distinction. It may be added that the

Supreme Court at Vienna usually contradicted the courts below.

Parenthetically, these fluctuations of opinion show how impos-

sible is the contention of Mr. Weiss, that the Tables of Affinity

must invariably be matter d'orde public, which a nation can never

relax in favor of foreign regulations. Whilst England was

counting among its prohibited affinities that which exists with a

deceased wife's sister, it was actually passing a statute declaring

that marriages within that prohibited degree contracted (even

in England) by persons domiciled in the colonies where such

unions were lawful, were valid to all intents in England. The

violation of orde public then, implies a real horror or shock to

the national juridical consciousness, which is by no means found

in all the exceptions to the currency of foreign "personal" law

in a given country.

IV

MARRIAGE AND IKINDRED INSTITUTIONS

It must always be remembered that when we are discussing

the legal requisites of marriage, we mean marriage, and not the

miscellaneous unions which are loosely and in a literary sense

termed such. No polygamous union is regarded as marriage.4

This provides the simple key to various cases which have been

the occasion of considerable perplexity in England. Thus .in

Chetti v. Chetti,49 there was a case of a Brimin; in Re Mir-

Anwaruddin, there was the case of a Mohammedan, affecting

to marry an English person in London. Each subsequently

attempted to avail himself of the incidents and provisions of the

law of his domicile (India). The fallacy was to assume that

these incidents had any relation to an occidental marriage. A

BrrAmin can only contract a Hindft "marriage" with the mem-

bers of certain specified castes. But neither Chetti nor his

inamorata had any idea when they visited the registrar of a

"In re Bethell (i888) 38 Ch. D. 22o.' [i~ga] P. 67.

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London marriage district, that they were contracting any suchsplendid and sacred union. They were celebrating-or at anyrate trying to celebrate-something very different. And if Mr.Chetti should urge that his personal law imposed on him anincapacity to enter into any such alien relationship as unsuited toa Briamin, the answer is that, of penal and religious incapacitiesimposed abroad, the law of England takes no notice. Also sucha prohibition could, in particular, be in restraint of marriage.So with regard to Mr. Anwaruddin's tangle. He married inEngland, but failing to induce his wife to live with him in India,he applied to the courts of his Indian domicile for a divorce.He not being a "Christian," they had no power under the statutesto grant relief. The proper conclusion would seem to be thathe had no remedy-except possibly that of judicial separationin the ecclesiastical court of the Indian bishop.-0 But, under theconviction that he must be able to secure a dissolution viis etmodis, he purported to effect a divorce, modo islamitico, by atriple bill under his hand. Now, this might have dissolved aMohammedan "marriage"; but he had not, by the ceremonyin England, contracted a Mohammedan marriage--but somethingvery different. He applied afterwards for the issue of a civilmarriage license in London, on the footing of the former unionbeing thus dissolved. The registrar refused to issue one, andthe court of King's Bench declined to order that officer to do so. 51

Dr. Anwaruddin had meanwhile obtained some encouragementfrom Justice Deane, who had expressed an opinion that the mar-riage was dissolved, in declining to entertain formal application byDr. Anwaruddin for restitution of conjugal rights which pro-ceeded on the footing that it still existed. The King's Bench,therefore, holds that Dr. Anwaruddin is married, and thematrimonial judge that he is not. The Court of Appeal may solvethe conflict. 52

' The power to grant matrimonial relief is incident to the bishops bycommon law. They have been deprived of it in England by statute. Butif no other matrimonial jurisdiction exists-as apparently in India, whereone party is not a Christian-it would seem to be unimpaired.

'A similar result was reached in French Tunis in i9o8. Mignet v.Abdelaziz Sfar (9o9) 36 Clunet, io75. Cf. however, Achouche v. Touaty(i9io) 37 Clunet, 56I, 564, where a Jew of Algiers who married a ladycalled Valensi before the French registrar, in i863, was held entitled tocontract a subsequent Jewish marriage.

"[In Ex parte Mir-Anwaruddin (i916) ii5 L. T. (Ct of App.) 882(issue of Feb. 17, 1917) it was held that his marriage was, according toEnglish law, still subsisting.-ED.]

CAPACITY AND FORM OF'MARRIAGE

There remained possible alternatives for Mr. Anwaruddin,short of the heroic remedy of cutting the Gordian knot by achange of domicile or a bill in Parliament. English courts willonly dissolve marriages where the husband's domicile is English.But there is beginning to be recognized an exception to that rulein cases where, for one reason or another, there is no possibilityof procuring a dissolution in the foreign jurisdiction. It is notprobable that jurisdiction would be assumed merely becausedivorce a vinculo was unknown to the foreign law (as in Italy).If an English person chooses to marry an Italian, she mustaccept the consequences-including the indissolubility of the tie.But sometimes, where divorce is freely recognized, there is ahitch in the machinery. The most glaring case appeared fromOgden v. Ogden, where the English wife could not get a divorcein the French husband's domicile, because the French courts didnot consider her married. It was suggested that in these cir-cumstances the English court, though not the court of thedomicile, might assume jurisdiction. And so it did in the subse-quent case of Stathatos v. Stathatos,53 in which the domicile ofthe husband was Greek. As has been observed, the consequenceis to introduce a new and serious confusion into marriage law.For the English court, thus assuming jurisdiction, can hardlyapply5" any other than its own matrimonial law to the conduct ofthe parties and to the incidents of the divorce, which neverthelessif the foreign court had assumed the jurisdiction would clearlyhave been governed by the foreign law. There is a tendency toextend this assumption of jurisdiction to the case of a desertedwife. The American principle, according to which a wife mayhave an independent domicile, would thus be approximated to.But, so far this recognition of the right of the English court toentertain such a suit has been limited to the minor case of jurisdic-tion in suits for divorce a mensa et thoro,55 as to which it was longuncertain whether the true ground of assuming jurisdiction wasdomicile or mere residence.5" Still the doctrine might have beenextended to relieve a Mohammedan Indian, who had contracted

[1913] P. 46."And in fact, being the creature of precise statutory provisions, has

probably no power to apply.SArmytage v. Armytage [1898] P. 178.

mNigoyet v. Nigoyet (1878) 4 P. D. i; Le Mesurier v. Le Mesurier[1895] A. C. 5,7o

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a marriage, to deal with which there existed in his own domicileno machinery at all. It would be a dangerous principle, becausenon constat that the intention of the Indian legislature was notto deprive parties to such a mixed marriage of marital relief.But, being so seductive a principle, there is little doubt but thatit would have prevailed, though the consequence is almost toconsecrate Chev. Fortunato's doctrine that there is a "naturalright" to divorce.57

Is it bigamy for an Oriental who has contracted an occidentalmarriage to contract a fresh one? Obviously so, if we are right:his liberty to have four "wives" has nothing to do with wivesin the occidental sense. His oriental marriages, on the otherhand,5" even if contracted in England or America, will not bebigamous because he already has "wives." They are an entirelydifferent style of thing. Thus, it is said that an ex-inmate ofIsmail Pasha's harem was duly admitted to marry an Italian atNaples.5" How far these positions are supported by Americancases, particularly from Utah, the writer is not aware. Again,is intercourse with such "wives" adultery? Here we are onextremely difficult ground. But on principle, it seems to be so.It is true that the connection is not obnoxious to the penal law:the connection is a licit and a respectable one. But the founda-tion of the matrimonial law regulating the occidental marriageis religious and ecclesiastical. Although its connection withreligion may have disappeared, so far as ceremonies and courtsare concerned, it remains true that the principles governing itare the old ecclesiastical principles. For the sake of certaintythey must be upheld unless and until they are expressly alteredby the legislature. And the very core of the marriage relation,according to those principles, is its. unity. Intercourse, howeverlegitimate, with a second consort, is necessarily a ground ofdivorce a mensa. And since the legislature has made it a groundof divorce a vinculo, it seems a necessary consequence that its

See Madrid Conference Report, International Law Association (1913)

p. 446.' Cf. Achouche v. Toualy (9IO) 37 Clunet, 561, where a Jew of Algiers

in 1863 married one Valensi before the French civil officer and was heldprobably entitled to marry in the Jewish form in her lifetime. In France,and on the continent of Europe generally, the distinction betweenmonogamous marriage and the various forms of polygamy has neverbeen distinctly perceived.

"(889) 16 Clunet, 7o8.


legitimacy and respectability will not hinder it from having thiseffect. It is not what the consort was entitled to expect.

On the other hand, the subsistence of an oriental marriagewould seem to be no bar to the conclusion of an occidental one.It would, however, afford a strong ground for declining to accordthe occidental consort a divorce founded on the continuanceof relations with the oriental parties (unless such consort hadbeen kept in ignorance of their existence), under the Englishsystem, which makes connivance or conduct conducing to theillicit intercourse, a ground for refusing relief.

In some countries, the ambiguity is solved by prohibiting mar-riage between Christians and non-Christians. The prohibitionusually extends to Catholic and orthodox Christians only, andnot to Protestants. On the other hand, it extends to Jews as wellas Mohammedans and Hindfis. Such prohibitions would clearlyreceive no recognition in England, whatever the nationality ordomicile of the parties, or (perhaps) the place of celebration.It is a cardinal principle that religious disabilities will not benoticed. As to ihe contention which is sometimes raised, that theJewish religious law should always and everywhere be appliedto Jews, neither the French 0 nor the English law recognizes anysuch rule.

TiaOMAS BATY.

INNER TEMPLE, LONDON.

Gottlieb v. Gottlieb (Igo8) 35 Clunet, 813. In this curious case, theSeine Civil Court declined to allow a lady to impeach her marriage on theground of a supposed incapacity on the part of the other consort (aRussian) to contract a civil marriage. But why not? The court styledthe incapacity a "benefit" conferred on the Russian by his personal law-but surely it was not solely as a benefit to him that Russia established it I

capacity and form of marriage in the conflict of …

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